Posting Online Reviews: Hyperbole, Facts and Defamation

Prior to widespread use of the Internet, someone who had a poor experience with a provider of goods or services could do little more than sue and spread word of their experience to friends and colleagues. Reports to the local Better Business Bureau or a state Attorney General’s office might also follow, but there was little power in individuals to more directly influence public perception of businesses and their owners. That has, of course, changed. Individuals with access to “new media” use that access, sometimes for purposes far more personal than their remit would seem to allow (one of my least favorite examples of personal use of an unrelated professional reputation online was Stanley Fish’s use of his NY Times “Opinionator” column to criticize AT&T Wireless’s handling of his personal cellular phone account), and these obviously raise concerns for businesses.

But even “unknown” individuals can cause headaches for businesses and business people. There are now a host of both general ratings websites — including sites such as epinions.com and bizrate.com — and more specific ones. Some of these sites allow individuals to post comment and review of business providers, while others add their own “site” reviews or aggregate reviews into overall rankings or generalized reviews (for example, movingscam.com allows for individual posts and also aggregates reviews of moving companies).  Much has been written about the potential liability of site owners and operators for content posted by others (see the EFF pages, for example, or Eric Goldman’s very readable take on the subject), and the extent to which the protection offered by federal law has gone off the rails in protecting site owners. Because of the ease of online criticism, businesses have sprung up with the goal of “protecting” others from criticism online.

Less has been written, however, about the opportunity that individuals now have to get in trouble themselves for content that they post on the web. What used to be a rant to friends, relatives and co-workers has become a broadcast to the whole world via the WWW. The dangers that arise when mixing fact and hyperbole, exaggerating the extent of what happened — something that is common in emotional responses to interpersonal disputes — are potentially significant, as the decision in Agard v. Hill reminds us. In Agard, the Federal District Court for the Eastern District of California refuses defendant’s motion to dismiss a claim of libel per se brought by a wedding planner. The defendants had difficulties with the wedding planner, and then eventually fired her. There are three specific statements (as is required) that the plaintiff claims are defamatory (in relation to their use by defendants to show through their statements that plaintiff is incompetent and untrustworthy):

(1) plaintiff moved multiple times;
(2) plaintiff is operating under a new name and in a new location; and
(3) plaintiff was fired two months before defendants’ wedding “due to issues that are too numerous and frustrating to go into at the moment.”

The Court dismisses the claim based on the third statement, noting that whether the defendant was fired one or two months before the wedding is irrelevant to the defamatory nature of the claim (so its falsity is also irrelevant) and that any implications underlying the numerous issues were supported by a small claims court judgment won by the defendants against the plaintiff. Statements one and two, however, according to the Court:

“Within the context of the entire publication, which contains multiple uncontested facts, the court finds that the “provably false assertion of facts” that plaintiff challenges here are likely to be believed by readers and lead to the impression that plaintiff is untrustworthy and incompetent. Defendants’ assertion that plaintiff moved multiple times and was operating under a new name may lead a reader to believe that plaintiff was engaged in unfair trade or was attempting to avoid a lawsuit.”

What makes the refusal to dismiss as to these statements more interesting, however, is that the overall context of the dispute, as played out in plaintiff’s online statements, does not “save” them from defending these statements. There were a number of relatively damning facts that plaintiffs included in their online post that the plaintiff did not dispute. These include: plaintiff not returning a portion of the deposit when she was fired, though she had agreed to do so; defendants winning a small claims action against plaintiff, which was then upheld on appeal; plaintiff not having returned money due to defendants; and, other couples having sued the plaintiff.

These statements, again, were not challenged by the plaintiff, and seem to paint a pretty nasty picture of how she interacts with at least some of her wedding clients. Yet the Court does not take these statements as establishing a context of poor performance that would excuse further, potentially false statements of fact used to embellish the report. Plaintiff’s challenge of these latter statements as factually inaccurate is sufficient to force defendants to continue to defend them (though the Court leaves open the question of whether a California privilege to make such statements without malice, found in Cal. Civ. Code § 47(c), is applicable, and if so, whether there was malice here, an issue the Court says is more properly reserved to a motion for summary judgment).

The lesson here is straight forward: if you are making statements online about another person, a business or a service, do not embellish beyond what you can show factually. Statements of opinion were, in the past, considered absolutely protected, but the U.S. Supreme Court has clarified that opinion-statements backed by implied facts will be actionable where the facts implied are false (see, Milkovich v. Lorain Journal Co.). Even where the entirety of a statement can be read as opinion (ie, I think X is an awful wedding planner and hope no one else hires her), where facts are stated or implied to support the opinion (something often required to make the opinion credible to those reading it), you’re likely to have to go further in defense of an expensive defamation lawsuit than you might otherwise like.

How we make “ordinary” people aware of the distinction and its importance is a question we should probably begin to consider.

The case is Agard v. Hill, No. CIV 2-10-cv-0323-GEB-JFM (PS), 2010 U.S. Dist. LEXIS 35014 (E.D. Ca., April 9, 2010).